Information Technology

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The Court of Justice of the European Union (CJEU) has handed down a reference for a preliminary ruling in Case C-610/15 (Stichtin Brein v Ziggo BV, XS4ALL Internet BV), holding that making available and managing an online platform for sharing copyright-protected works may constitute an infringement of copyright.

The case was brought by a Dutch anti-piracy group Stichtin Brein against two internet service providers and was referred to the CJEU by the Supreme Court of the Netherlands to seek clarification on a point of EU law.

The CJEU considered whether an internet sharing platform, such as ‘The Pirate Bay’, which makes available and manages the indexation of metadata relating to copyrighted works, was providing ‘communication to the public’ of copyrighted materials within the meaning of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. It was noted that although copyrighted material was placed online by users and not by the operators of ‘The Pirate Bay’, by indexing files to allow users locate and share protected works, it played “an essential role in making the works in question available.”

It was also noted that although ‘The Pirate Bay’ does not host content, it provides a torrent search engine, classifying files under different categories and providing access to protected material “with full knowledge of the consequences of their conduct.”

The case will now return to the Dutch courts for final determination on the issue, but the ruling strengthens the position of copyright holders throughout the EU who wish to hold online sharing platforms accountable.

 

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The Article 29 Working Party (WP29) (consisting of data protection regulators from the 28 Member States) has adopted an Opinion 01/2017 on the proposed e-Privacy Regulation, which will repeal and replace the e-Privacy Directive. Whilst the WP29 welcomes the proposal, it identifies several points of concern, and sets out how the proposal can be improved.

Continue Reading WP29 gives lukewarm welcome to proposed e-Privacy Regulation

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In Rolf Anders Daniel Pihl v Sweden, the European Court of Human Rights (ECHR) agreed with Swedish authorities that a non-profit association was not liable for anonymous defamatory comments posted on its blog. The ECHR held that the Swedish authorities’ refusal to hold the owner of the blog liable for the anonymous defamatory online comment did not violate the European Convention on Human Rights (the Convention).

Continue Reading Blog owner not liable for anonymous defamatory online comments

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The Department of Justice and Equality have published a policy document on amending the law relating to the interception of communications. The purpose of interception legislation is to assist in the fight against organised crime and to protect the security of the State.

Irish legislation relating to interception is out-of-date and needs to be amended to provide for lawful interception of email and other forms of communication over the internet. Interception is controlled, to a limited extent, by the Postal and Telecommunications Services Act 1983, and the Interception of Postal Packets and Telecommunications (Regulation) Act 1993. That legislation is restricted to Telecoms and Postal Service providers (i.e. voice calls, text messages and postal packets). 

The Government intends to introduce approximately 50 amendments to the current regime, with the primary aim of ensuring that communications services delivered over the internet are covered by our lawful interception legislation.  Accordingly, the definition of “information society services” will be amended to cover “internet referencing services, social media“, and “any other entity providing a publicly available means of communication over an electronic communications network.” The definition of “interception” will also be amended to reflect modern communications characteristics.  It will essentially be “an action, the effect of which is to make some or all of the content of a communication available to a person“. 

Continue Reading New legislation on interception of communications

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The High Court in Muwema v Facebook Ireland Ltd [2016] IEHC 519 held that Facebook had no duty to remove defamatory content posted by an anonymous third party. Justice Binchy did, however, make a Norwich Pharmacal order requiring Facebook to disclose the identity and location of the person operating the page involved.

Continue Reading ISP not required to remove defamatory statements

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An Advocate General of the CJEU has expressed his opinion that operators of a free Wi-Fi service, who offer that service to the public, will be protected by the mere conduit defence under the E-Commerce Directive and will therefore not be liable for copyright infringement committed by users of that network. Advocate General Szpunar has published his opinion in response to a series of questions posed to the CJEU in Case C-484/14 Tobias McFadden v Sony Music Entertainment Germany GmbH. The case came about following an illegal download of a musical work in 2010, which prompted Sony to bring an action for damages and injunctive relief against Mr. McFadden – the operator of a business selling and renting lighting and sound systems near Munich which offered the free Wi-Fi network accessible to the public (over which the music work was unlawfully downloaded).

Continue Reading Potential light at the end of the wifi tunnel

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The High Court in the UK has again endorsed the use of predictive coding, ruling it as being the most appropriate and proportionate approach to disclosure despite disagreement between the parties surrounding its use. In a previous blog, we outlined how the UK High Court in the Pyrrho case ruled that predictive coding was appropriate to discharge a parties obligations regarding electronic disclosure.

In the most recent judgment, (yet to be published), the concept of using predictive coding in a disclosure exercise was strongly contested. Berwin Leighton Paisner acting for the respondent note that the petitioner’s solicitors wished to adopt a “traditional” approach to document review, where the inboxes of an agreed a list of custodians would be filtered using an agreed list of search terms, and the responsive documents would be subject to a manual review.  It was put to the court that the costs of the traditional approach would be excessive, and that superior results could be achieved at a more proportionate cost using predictive coding.

Continue Reading UK High Court endorses Predictive Coding (Part II)

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Under the Copyright Directive (2001/29/EC) the owner of copyright material has the exclusive right to control any "communications to the public" of their protected works.

In an advisory opinion to the Court of Justice of the European Union ("CJEU"), Attorney General Wathelet (the "AG"), recently considered whether the act of posting a hyperlink directing users to infringing content on a third party website would give rise to copyright infringement.

Continue Reading New Guidance On Whether Hyperlinking May Constitute Copyright Infringement

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The High Court in the UK has fully endorsed the use of predictive coding in discharging a parties obligation regarding electronic disclosure. Master Matthews, in Pyrrho Investments and others v MWB Property and others [2016] EWHC 256 (Ch), noted in this case that "there were no factors of any weight" to point in the direction of not using predictive coding for the disclosure process.  This is the first time a UK Court has given judgment on the area, while noting the limited Irish and US jurisprudence on the topic.

Predictive coding, often referred to as technology assisted review, is the use of computer software to review and analyse documents, determining if they are of relevance to the issues of the case. It is not without human input however, as the computer must first be "trained" in order to determine relevance.  Based on the training received the software can review and score documents for relevancy, subject to quality assurance exercises carried out by the human reviewer.

Continue Reading UK High Court endorses Predictive Coding in Discovery

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Europe is today celebrating Data Protection Day, with this year’s celebrations coinciding with the recent political agreement for the finalised text of the new General Data Protection Regulation (GDPR) (for further information – see our earlier blog post). One of the many events organised across Europe in conjunction with Data Protection Day was the National Data Protection Conference, which took place over the course of yesterday and today.

Continue Reading Data Protection Day – National Data Protection Conference